The Nation: Lisa Owen interviews David Parker

On Newshub Nation: Lisa Owen interviews Trade Minister and
Attorney General David Parker

Lisa Owen: In five
days’ time, our trade minister, David Parker, will be in
Chile to sign up to a revised version of the Trans-Pacific
Partnership deal – one of 11 countries to do so. Mr Parker
once marched against this deal but says it’s now a new and
improved version. It’s certainly got a longer name – the
Comprehensive and Progressive Agreement for Trans-Pacific
Partnership. David Parker joins me now. Minister, from this
point onwards, we’re just going to refer to it as the
agreement.

David Parker: The CPTPP.

Yes, exactly. Scale
of 1 to 10 – 10 being out of this galaxy, deal of the
century – what grade do you give it?

Probably a 7 to
good, improved access into Japan, where beef exports have
been dropping; they’ve dropped by 38 per cent recently
because of Australian competition with lower tariffs.
That’ll be fixed. Not an especially good deal for dairy
but better than nothing, and relatively more important than
it was before the attacks on the World Trade Organization
architecture that are happening because of some other
countries who seem to want to blow the system up.

Some
people would listen to that and say you’ve given it a
seven, which is kind of okay; it’s sort of lukewarm. Why
are you signing up to it if it’s only a seven?

Because
the alternative for New Zealand would be worse. I think most
New Zealanders know that we’re never going to produce
computers or cars or cell phones and medicines, so we’ve
got to sell things to the rest of the world in order to buy
the things we need to have a good standard of living. So I
think it will benefit people throughout society, whether the
freezing worker or the farm owner or the computer programmer
or the tech entrepreneur.

So it’s pragmatism, Minister?
Pragmatism is suggesting that you should sign this.

I
think it will be good overall for the country. I don’t
think it’s the best trade agreement; that’s why I gave
it a seven. Our best trade agreement is with Australia,
which you give a 10 out of 10, and in comparison to our free
trade agreement in CER with Australia, it’s not nearly as
good, but it is important, particularly into Japan, and
that’s why we’re signing up.

Okay. Well, the deal. The
numbers are that the deal is expected to bump up GDP
anything from about 0.3% to 1%. So that could be as little
as just over $1 billion a year. So put it in perspective.
You are planning to spend $1 billion a year on regional
development. Those numbers aren’t that flash, some people
would argue.

I’d say a couple of things about that. One
is that does actually translate to thousands of extra jobs
in the economy that wouldn’t otherwise be there. It’s
obvious that if we have no tariffs and we face tariffs into
other countries, if they drop their tariffs under this
agreement and we don’t drop ours – because ours are
already essentially at 0 – that there are economic
benefits into New Zealand. In respect of the total of those
tariff benefits, the tariff reductions for New Zealand in
this are close to twice what they were in the tariff
reductions under the Chinese free trade agreement, so the
benefits of that, I think, are known to virtually every New
Zealander, and I think the benefits from this will be
substantial as well.

Okay, so you have managed to suspend
22 of the most controversial clauses, right? But just
suspend them, not ditch them altogether. So what is to stop
a future government, in conjunction with those other
countries, reinstating those clauses? What’s to stop that
happening?

Well, in theory, and this isn’t in practice,
but in theory, any one of the 11 countries in the new CPTPP
can block them being reintroduced. In reality, it’s a
negotiation. I think it’s an absolute certainty that all
of those clauses would never come back.

And that’s the issue, because if America chooses to
get back in on this deal, it would want those 22 clauses and
then some, probably, put back into that agreement.

They
might want to ditch other clauses completely that we want to
get rid of, like the ISDS clauses, which we sort of
succeeded halfway in getting rid of for the benefit of New
Zealand in this agreement, not completely. Now, America is
against ISDS clauses, so that could be an outcome
too.

Yeah, and we’re going to talk about that in a
little bit, but the thing is if America wants to get back in
on this deal and it says it wants those clauses, it wants
life breathed back into them, is a future government—? You
can’t guarantee a future government or even your
government is going to have the courage to resist that
powerful country and the lure of a deal with the US.

In a
democracy, you can never buy into future government, and
they could always do something different, so I don’t think
I should be blamed for that. But I’ll give you a real
example. One of the things that we’ve improved in this
version is that we’ve cut out the extension to what’s
called data-exclusivity for new drugs called biologics. What
that means, in effect, is that Pharmac, who buys drugs on
behalf of the New Zealand public, won’t face extended
periods where they’re tied to a patented drug, and they
can go to generic so we can afford more medicines in New
Zealand. I think it’s very, very unlikely that any of the
other countries in that agreement would agree to America
reversing that change.

Okay. Well, let’s look at what
the five bottom lines were that you laid out that Labour
said if you didn’t get those five bottom lines, you
didn’t want a bar of this deal. You talked about Pharmac
there. You admit that it was the National Party that took
care of Pharmac, actually. You said the Pharmac model’s
been well-protected by the prior government in their
negotiations, so that’s credit to them.

That’s true.
In terms of the Pharmac model, that’s correct. In respect
of those additional costs, we’ve protected that in this
new version.

Upholding the Treaty of Waitangi – it’s
exactly the same text, is it not, as the deal that National
was signing up for, word for word, the clause about
protecting the Treaty?

It’s the same one that’s in all
of our trade agreements, and that’s probably the
best—

So it’s no different. Nothing’s
changed.

Correct.

Okay. So, meaningful gains in tariff
reductions and market access – America’s not in the deal
and it’s of less value than it was, so did you meet that
criteria, you think?

Well, yes, we did, and we actually
had attempts right throughout to prune us back on the market
access that we had into both Japan and Canada, but we
managed to parry those attempts. As I said, it’s a 7 out
of 10 agreement in respect of that, but it’s still
meaningful gains.

You did restrict foreign home ownership
of our houses, but number five of your bottom lines—

No,
let’s just talk about that, because I think that’s the
most significant change, because we were told by
the—

But you didn’t say, “If I get one of these,
I’ll sign up.” You said, “If I got five of these –
five.”

We’ve got four-and-a-half out of five, but
don’t gloss over—

That’s not five. That’s not
five, Mr Parker.

Don’t gloss over the most important
one, please, Lisa. It is a matter of personal concern to me
and, I think, most New Zealanders that future governments
should have the right to control who buys our houses. The
last government said we’d either have to throw away free
trade agreements or throw away our right to control who buys
our homes. We found a route through that, and I think that
most New Zealanders are persuaded that that’s a very, very
important thing.

Yes, and a lot of people would say well
done to you, but you still did not get to five out of five,
because the number five of your bottom line was the investor
state dispute clause. You said it had to go; you didn’t
want companies having the ability to sue New Zealand. But
the clause is still in there, so how, in good faith, can you
sign on to something that you said five bottom
lines?

Actually, our bottom line, if you read it, said
that we wanted to protect the right to regulate it. It
actually didn’t name ISDS clauses, but I’m happy to
concede that we promised we’d try and get rid of them.
We’ve protected the right to regulate across environment,
public health, public hospitals, public education systems,
right to fund SOEs, climate change, tobacco plain packaging
– you name it, we’ve got the right to do that. We’ve
narrowed the effect of ISDS clauses in a number of ways.
We’ve excluded investment contracts. Someone builds
Waterview Tunnel or a multinational – they used to be able
to sue the government. They now no longer can. They’ve got
to just sue it in New Zealand courts. It no longer applies
to investment screening.

So you’ve narrowed the scope.
You’ve absolutely narrowed the scope, but you haven’t
got rid of it.

Please let me finish the explanation.
We’ve narrowed the effectiveness of it by more than 80 per
cent, because it only applies to foreign direct investment
into New Zealand, and more that 80 per cent of the foreign
direct investment into New Zealand is carved out from these
clauses, with side leaders. We are left with a residue. We
wanted to get rid of the residue.

And you didn’t, but
you are still going to sign up.

That’s true. But you
know, we got four and a half out of five. That’s 90 per
cent. I’ll tell you what, that’s damn sight better than
I got in school cert.

Okay, so if we accept that you met
all the benchmarks, and your critics would say you did not,
they wouldn’t give you four and a half out of five.
They’ll probably give you two.

Oh, you’ve got to be
joking. No, no, no. That’s absolutely clear that we’ve
met four and a half out of five.

Okay, still not five. And
you said you were after five. So these carve-outs, with the
carve-out with Australia, which means they can’t sue us,
you’re working on other suspensions, which you’ve talked
about. How many and with what countries?

I can’t say
that, for reasons of agreement with those other
countries.

And here’s the thing with that, though.
Because you criticised the other government for doing this
deal in the dark, and in fact, Andrew Little – I’m
quoting him here – “Kiwis are in the dark about which of
their sovereign rights are being gambled away.” How is
what you are doing behind closed doors different?

Well,
we’ve disclosed the text of the whole agreement. We have
had public meetings up and down the country before the
agreement was signed. We’ve had a debate in parliament
before we signed.

But no debate on these suspension
clauses that you’re discussing with other
countries.

They’re identical to the form which we have
disclosed in respect of Australia, which accounts for 80 per
cent. These are all additional to that, but they’re the
same in principle. That will become clear next week when
it’s signed, which is not the date when it comes into
effect. So between that date and the date it comes into
effect, that will also be out there transparently.

Okay,
before we move on, your partners in government, the Greens,
believe in essence that this deal is a dog. So who is
ill-informed, you or them?

Them.

Your partners in
government are ill-informed, the Greens?

They’re wrong
on this, yes.

Okay. Have you told them?

Yes. They know
my opinion, just as I know theirs. They disagree, but it’s
a democracy. We’re free to disagree.

So are you
comfortable having to rely on National then to get this
business through?

The other thing here is that I don’t
actually expect everyone in New Zealand to agree with me
just because I’m in government. I do try to deal with the
individual arguments. You know, people who say we’ve lost
the right to regulate in respect of climate change. Well, I
think they’re wrong, and I’m happy to take them through
the individual clauses in the agreement that protect our
rights on that. But at the end of it, there will still be
some people who are never convinced. And that doesn’t make
them bad people; that just means that they’ve got a
different opinion on that, and we’re free to
disagree.

Well, let’s move on to a totally different
topic. This week, Labour has signalled it’s going to take
a stronger stance around protecting people’s human rights.
You want to give the senior courts the power to force
parliament to review laws if they conflict with our human
rights. So what court should have that power? What are you
classifying as senior courts here?

Well, that’s being
worked through by Andrew Little, in terms of the change of
legislation. But the senior courts are essentially what we
mean as High Court and above. And we’ve got a problem in
New Zealand that it’s a little bit easy in our system,
which only has one house of parliament, to somewhat rashly
override the Bill of Rights. At present we haven’t got a
route back to fix it.

No, only a voluntary route. Because
if the court were to tell or make a declaration, which it
has, that the law is inconsistent, parliament could, of its
own bat, revisit that.

It could, but it sometimes gets
tied up in politics. And we think it would be a good idea
– this was recommended by the Constitutional Review
Committee – to actually create a process within parliament
to look at it, to take breath and say, “Hey, look, the
courts have told us we’ve got this a bit wrong.” But it
you’re going to do that, it’s important that you
preserve the sovereignty of Parliament. And so Parliament
would, yes, have to look at it again, but it could either
affirm, amend or change the law that was criticised by the
courts.

Are you going to adopt one of Geoffrey Palmer’s
recommendations which was that if you want to affirm that
law, you’ve got to get a 75 vote, majority, to keep a law
that is inconsistent with the Bill of Rights?

No. No, I
don’t think so, no.

So will they just be required to
look at it and nothing more? Is it going far enough?

You
know, some of the problems you see oversees, like America
not being able to change their gun laws or their campaign
financing laws, or Australia being able to fix their
problems with the ancient citizenship of some of the parents
of the MPs, meaning they’ve got to resign, we don’t have
those problems in New Zealand. Our system is actually
working very, very well in New Zealand at the moment. But
it’s a bit easy to overrule the Bill of Rights, so this is
intended to fix that. I didn’t know that this issue was
going to be raised, but I’m happy to talk further about
it.

So given this is a priority for your government, why
is Crown law seemingly throwing its weight and considerable
resources into fighting human rights cases through the
courts? Now, an example of that is this battle of
prisoner’s right, or not, to vote. It’s in the Supreme
Court, this coming week. Every other court has already said
that a blanket ban on prisoners voting is inconsistent with
Bill of Rights obligations. So why keep going and spending
all that money and fighting up to that level?

Well, one,
in the scheme of things, it’s actually not a lot of money.
We’re just about all the way through the courts system.
And the issue at large in the court is whether the court
already has the jurisdiction to do of whether it has to be
given by parliament. And that’s an important point of
principle. Now, that’s a matter before the courts, so I
don’t really want to go into that too much today, because
I’ll be seen to be criticising the courts in the middle of
the process.

Let me put it another way, then, Minister.
Are you going to give Crown law any particular instruction
around pursuing cases like that?

Well, I believe in the
rule of law.

So take it right to the Supreme
Court?

Where there’s an important point of principle,
yes. That’s what the Supreme Court’s for, and I think
they would agree to that, that that’s what they’re there
for too.

But do you think that puts an overly large burden
on the other side of the argument, the other people pursuing
the other side of the argument, to fund their case to that
level?

No, I don’t. No. If you think that’s the
problem, you should do away with having Courts of Appeal or
the Supreme Court. So, no, I don’t think that’s an
issue.

Ok. What do you think, should prisoners get the
right to vote?

Well, I voted against the legislation.

Yeah. So?

I mean, the reason I voted against that was
that it’s arbitrary that if someone’s in prison for six
months – if they’re there during the period when the
election’s held – they can’t vote; it they’re there
in the six months before then, they can. So despite the fact
that they’ve not done anything differently to the other
person, they’re being treated differently, which is why
the courts, and indeed the then Attorney General, found that
that was inconsistent with the Bill of Rights. But actually
that’s less important than the wider point that is where
parliament perhaps has a rush of blood to the head, as I
think Parliament did on medication when the National party
pushed that through. Actually, Simon Bridges had that wrong
in your last interview.

Yes.

Sometimes it’s worth
parliament, after hearing from the courts, say, “Well,
look, you know, we should look at this again.” So that’s
all this is saying.

This week Judge Becroft, the
Children’s Commissioner, suggested that 16-year-olds
should get to vote. What do you think?

Well, that’s not
my portfolio responsibility, so I won’t express an opinion
on that. It wasn’t our policy in the last
election.

Okay. You will probably be aware that there’s
a current case in the High Court where a woman is trying to
get her New Zealand passport back under the 1992 Passports
Act. She’s not allowed to be in court; she’s not even
allowed a lawyer there, and no members of the public or the
media can be there to see and report what’s going on. Does
that seem consistent with our Bill of Rights Act?

Well,
again I won’t comment on the detail of that case. And
I’ve probably been briefed on it.

But in principle? If
not that case, in principle? Shouldn’t we have
transparency and accountability?

It’s one of the issues
that’s left hanging by the review of the Security Agencies
Law a couple of years ago, that the Law Commission is
looking into and reporting back to parliament. Because
you’re right, you’ve got to get that balance right. On
the one hand, you’ve got duties to some of our security
agencies that we get this information from overseas; on the
other hand, you have to be fair in the process.

Have you
got the balance right, currently?

I think the Law
Commission will come back with suggested amendments. No, I
don’t think the balance is quite right at the
moment.

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